Emily Brown v Woolworths Group Limited
[2023] FWCFB 10
•18 JANUARY 2023
| [2023] FWCFB 10 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Emily Brown
v
Woolworths Group Limited
(C2022/7348)
Chantelle Brown
v
Woolworths Group Limited
(C2022/7829)
| VICE PRESIDENT CATANZARITI | SYDNEY, 18 JANUARY 2023 |
Appeal against decision [2022] FWC 2780 of Deputy President Easton at Sydney on 17 October 2022 in matter numbers U2022/3299 and U2022/3316 – permission to appeal refused.
Background
Emily Brown and her daughter Chantelle Brown (the Appellants) have lodged an appeal under s.604 of the Fair Work Act 2009 (Cth) (the Act) against a decision[1] (the Decision) of Deputy President Easton issued on 17 October 2022, for which permission to appeal is required. The Decision concerned an application, brought by the Appellants, for an unfair dismissal remedy against Woolworths Group Limited (the Respondent) pursuant to s.394 of the Act.
The Appellants were employed as casual shop assistants at the Woolworths supermarket in Jindabyne. In February 2022, the Respondent introduced a group-wide policy that required its employees to be vaccinated against COVID-19. The Appellants were dismissed from their employment as they did not provide proof of vaccination. The Deputy President ultimately dismissed the Appellants’ applications finding that they were not unfairly dismissed in accordance with the Act.
Directions were set for the filing of material by the Appellants. As this matter was listed for permission to appeal only, the Respondent was not required to file any material. The Appellants filed written submissions and made further oral submissions at the hearing on 6 December 2022. The Respondent filed written submissions seeking permission to be legally represented at the hearing in accordance with s.596 of the Act. At the hearing, the Full Bench granted permission for the Respondent to be legally represented.
For the reasons that follow, permission to appeal is refused.
Decision Under Appeal
Emily Brown commenced employment with the Respondent in July 2020 and Chantelle Brown commenced employment in March 2021. Both Appellants were dismissed by letter dated 12 March 2022. At the beginning of the Decision the Deputy President made the following observations:
“[9] In this matter the Applicants, through Mr Smith as their advocate, have run the same points that have been put to and rejected by the Commission, many times over. The arguments are in nearly identical terms to arguments put in other unsuccessful cases, and the result in this case is the same as the result in those other cases.
[10] I have carefully reviewed all of the evidence and submissions of the parties and have decided these two applications on their own merits. However it is not necessary to recite the Applicants’ submissions in detail or provide elaborate analysis of the many difficulties contained within those arguments. Almost all of the matters put by Mr Smith on behalf of the Applicants are not new and, frankly, should not have been put without a fulsome submission explaining how or why I could arrive at a different conclusion to all of those who have already considered and rejected the very same points.”
The Deputy President then proceeded to address and reject these main contentions as set out at [11] – [62] of the Decision, which we have briefly summarised as follows:
The “No Law” Argument – In this matter the Respondent decided to introduce a COVID-19 vaccination policy, whereby all staff were required to be vaccinated subject to limited exceptions. The Appellants contended that there were no public health orders in place requiring them to be vaccinated and no law requiring them to comply with the Respondent’s vaccination policy. The Deputy President applied the Full Bench’s reasoning in CFMMEU v Mt Arthur Coal Pty Ltd (2021) 310 IR 399 to demonstrate that employers can implement lawful and reasonable directions upon which employees must comply. The Deputy President therefore rejected the Appellants’ argument.
Unlawful because of inconsistency with the Australian Constitution – The Appellants contended that the vaccination policy is unlawful because it is inconsistent with s.51(xxiiiA) of the Australian Constitution. The Deputy President noted that the Appellants’ representative had run this argument for other applicants, and that it had been unsuccessful every time. Further noting that this argument was put to very senior judges who rejected it for being “completely untenable.”[2]
No approved vaccines – The Appellants submitted that the vaccination policy is unlawful because there are no vaccines approved for general use in Australia. The Deputy President rejected this submission on the basis that it was fanciful, defied common sense and was manifestly groundless. He noted that he provided full reasons for rejecting this argument in Southwell and Prager v New Horizons Enterprises Ltd[2022] FWC 2580 (New Horizons).
The Deputy President also dismissed other contentions advanced by the Appellant as they were dependent upon the unlawfulness of the vaccination policy, or that the policy could not be complied with because no COVID-19 vaccines have been approved.
Next, the Deputy President turned to consider whether the Respondent’s direction was lawful and reasonable in the circumstances. The Deputy President was satisfied that the direction was lawful. As to whether it was reasonable, the Deputy President noted that the Appellants’ material referred to the risks associated with vaccination. The Respondent relied on the expert report of Dr Paul Griffin. The Deputy President described much of the Report in detail at [28]-[36] of the Decision, as it squarely dealt with many doubts and uninformed commentary of COVID-19 vaccines. Notably, the Appellants chose not to cross-examine Dr Griffin and put their opinions, fears and ‘truths’ to a leading medical expert whose answers could have proved (or disproved) the correctness of their case. The Appellants instead relied on the written evidence of Dr Connie Turnie, a research fellow with a PhD in veterinary immunology. The Deputy President ultimately rejected the Appellants’ submissions and preferred the Respondent’s evidence on this issue. Therefore, the Deputy President found that the Respondent’s direction was reasonable in the circumstances.
While the Appellants did not actively challenge whether the Respondent properly consulted with relevant stakeholders prior to introducing the vaccination policy, the Deputy President was nonetheless satisfied that the Respondent did properly consult with its employees prior to its introduction. The Deputy President set out the background of events to demonstrate how this consultation occurred. This background showed that the Respondent encouraged employees to become vaccinated, surveyed their workforce and then chose to introduce the vaccination policy.
The Deputy President then turned to consider the factors in s.387 of the Act to determine whether the Appellants dismissal was harsh, unjust or unreasonable. First, the Deputy President considered whether there was a valid reason for the Appellant’s dismissal (s.387(a)). The Respondent submitted that the Appellants’ refusal to be vaccinated, as required by the vaccination policy, was misconduct. The Appellants submitted that there was no valid reason for their dismissal because the policy was unlawful. The Deputy President was satisfied the Appellants’ failures to comply with the policy were of sufficient gravity to constitute a valid reason for dismissal and he therefore found that there was a valid reason to dismiss each Appellant from their employment.
Having regard to ss.387(b) and (c) the Deputy President was satisfied the Appellants were notified of their dismissal and had an opportunity to respond to the reasons for which they were dismissed. Further, in relation to s.387(d), the parties did not have discussions about the dismissal (although the Respondent did invite such discussions) and the Deputy President found that the absence of a support person did not affect the fairness of the dismissal. The Deputy President also found that the Appellants’ dismissals did not relate to unsatisfactory performance (s.387(f)). Similarly, the Deputy President found the size of the Respondent’s enterprise (s.387(f)) and the availability of dedicated human resource management expertise (s.387(g)) did not affect the fairness of the dismissals. Finally, he was satisfied there were no other relevant matters (s.387(h)) that impacted upon the fairness of the Appellants’ dismissals.
In conclusion, the Deputy President found that the each of the Appellant’s dismissals were not harsh, unjust or unreasonable and he dismissed their applications.
Grounds of Appeal and Submissions
The Appellants have provided numerous grounds of appeal in their F7 – Notice of Appeal and written submissions. We have summarised and distilled the Appellant’s grounds of appeal and submissions as follows:
1. Similar to the Appellants’ submissions at first instance, they allege inconsistency with the vaccination policy and the Australian Constitution. They allege error in the Deputy President’s finding that no inconsistency arises between the vaccination policy and the Australian Constitution. Further, the Appellants allege “consistent misrepresentation of the jurisdiction of the FWC by refusing to recognize the supremacy of the current Commonwealth-Constitution over all States’ and Territories’ Laws/Acts and Regulations”. These submissions refer to sections of the Australian Constitution and sections of the Act which describe the functions of the Commission. Distilling this submission, the Appellants’ allege that the Commission is bound to act within its jurisdiction and the Commission has acted outside its jurisdiction.
2. The Appellants’ allege that the Deputy President demonstrated bias during the first instance proceedings and did not afford them procedural fairness. To support this submission, they refer to the fact that the Deputy President did not provide the Appellants with the transcript from the first day of the hearing and, as a result, the Appellants ordered and paid for the transcript themselves. They also refer to the New Horizons case which they say shows that the Deputy President had made up his mind before hearing the Appellants’ evidence on this submission. Further, the Appellants take issue with the Deputy President’s decision not to recuse himself from the matter.
3. The Appellants allege that the Deputy President erred by rejecting the Appellants’ contentions on the “No approved vaccines” argument. On this ground the Appellants provided evidence from the TGA to demonstrate there are no “fully” approved vaccines in Australia. Further, they allege the Deputy President erred in preferring the Respondent’s evidence of Dr Griffin over the Appellants evidence. The Appellants say they sought to provide additional material to the Deputy President, namely the report of Dr Phillip Altman, however the Deputy President refused to admit this evidence. The Appellants therefore submit that the Deputy President erred by refusing to allow the evidence into the proceedings.
4. The Appellants allege that the Deputy President did not properly consider their evidence. Particularly, their submissions that they were not afforded protections at work.
5. The Appellants allege that the Deputy President erred in finding that the Respondent’s vaccination policy was lawful and reasonable, as he applied incorrect precedents and interpreted the case law incorrectly.
The Appellants also raised arguments which they agree were put to the Deputy President at first instance in relation to the reasonableness of the vaccination policy and safety and efficacy of COVID-19 vaccines.
As to why the appeal is in the public interest the Appellants submit in their F7 – Notice of Appeal:
“The commissioner Deputy President Easton conduct during proceedings in this matter has clearly demonstrated bias, unprofessional conduct and amongst other things, has breached the FWC member code of conduct.
It is noted that members of the commission should constantly bear in mind that everyone who comes to the Commission — party and witness alike — is entitled to be treated with courtesy and in a way that respects their dignity. Any behaviour that could reasonably be expected to intimidate, degrade, humiliate or cause serious offence is entirely inappropriate.
The Fair Work Commission as like other justice institutions, ultimately relies on public confidence for its legitimacy. Accountability and appropriate standards of professional conduct that are fundamental to maintaining public confidence in the Commission.
Accountability and appropriate standards of professional conduct are also fundamental to the Commission performing its functions and exercising its powers in a manner that is efficient, fair and just, and open and transparent.
Deputy President Easton failed to uphold the status and reputation of the Commission, and his conduct clearly diminishes public confidence in, and respect for, the FWC.
Therefore, it is in the public’s best interest that the appeal is granted to ensure to upload the confidence of the public in regard to the FWC holding fair, transparent, unbiased proceedings and making fair decisions in the best interest of the people of Australia.
Further, the Australian public expects the members of the national workplace relations tribunal to demonstrate the highest standards of workplace conduct.”
Principles on Appeal
An appeal against a decision to dismiss an unfair dismissal remedy application under s.604 of the Act is one to which s.400(1) of the FW Act applies.[3] Section 400(1) requires that permission to appeal must not be granted unless the Commission considers it is in the public interest to do so. This test is a stringent one.[4] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[5] Some of the considerations that may attract the public interest are where a matter raises issues of importance and general application, or there is a diversity of decisions at first instance so that appellate guidance is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.[6] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated.[7] However, the fact that the member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.[8]
Consideration
In this case, we are not persuaded that it would be in the public interest to grant permission to appeal. We do not consider that any reasonably arguable case has been advanced that the Decision of the Deputy President was attended by appealable error. We are of the view that the Appellants’ grounds of appeal are misconceived and have already been addressed by the Deputy President at first instance. However, for completeness, we address the Appellant’s submissions as follows.
In relation to Ground 1, we note that these arguments were dealt with by the Deputy President at first instance and his findings are set out at [16]-[18], [22]-[25] of the Decision. The Deputy President rejected the Appellants’ claims that the vaccination policy is inconsistent with the Australian Constitution. We agree and find no error in the Deputy President’s findings or approach. Further, we are satisfied there is no basis to suggest that the Commission has acted beyond its jurisdiction, the Deputy President’s consideration and findings in the Decision were orthodox and well-within the Commission’s power. We find this ground discloses no reasonably arguable case of error.
Ground 2 concerns an allegation of bias on the part of the Deputy President. We do not consider it to be seriously arguable that the Deputy President acted impartially or contrary to natural justice or denied the Appellant procedural fairness. The Appellants were given every opportunity to present their case throughout the hearing before the Deputy President. The Appellants were provided with access to transcript from the second day of the hearing, but they take issue with the fact that the Deputy President did not provide them with the transcript from the first day of the hearing. We note that it is not a matter of course that parties are provided with the transcript of their hearing from the Commission. Transcripts are provided to both the Commission and parties by an external company, and it was open to the parties to order the transcript if they choose to do so. It remains at the discretion of the presiding member to decide whether the Commission will provide a courtesy copy of the transcript to parties. Further, we are satisfied that the Deputy President’s decision not to recuse himself from the hearing was reasonable and appropriate in the circumstances. We find no merit to the Appellants’ contention that the Deputy President was biased and we dismiss this ground.
We have considered Grounds 3 and 5 as well as the other submissions raised by the Appellants on the reasonableness of the vaccination policy and safety and efficacy of COVID-19 vaccines. We are satisfied that these submissions are merely an expression of the Appellants’ dissatisfaction with the outcome of the Decision and are an attempt to reagitate the merits of their case as put to the Deputy President at first instance. We are satisfied that the Deputy President’s conclusions on these contentions were reasonably open on the evidence before him and find no error in the Deputy President’s findings or approach. Further, in our view there is no arguable error in relation to the Deputy President’s decision not to admit the opinions of Dr Altman into evidence. Accordingly, we dismiss these grounds of appeal.
Finally, Ground 4 alleges that the Deputy President did not properly consider the Appellants’ evidence. We reject these submissions and note that the Deputy President considered all of the Appellants’ material thoroughly and appropriately. The Deputy President applied the correct legal principles, considered, and dealt with the evidence that was before him, and made findings of fact based on that evidence.
Further, we have considered whether this appeal attracts the public interest, and we are not satisfied that:
· there is a diversity of decisions at first instance so that guidance from an appellate body is required;
· the appeal raises issues of importance and/or general application;
· the Decision at first instance manifests an injustice, or the result is counter intuitive; or
· the legal principles applied by the Deputy President were disharmonious when compared with other decisions dealing with similar matters.
Conclusion
For the reasons set out above, we are not satisfied that it would be in the public interest to grant permission to appeal pursuant to s.400(1) of the Act.
Accordingly, permission to appeal is refused.
VICE PRESIDENT
Appearances:
Mr A Smith, for the Appellants.
Mr P Zielinski, for the Respondent.
Hearing details:
2022.
Microsoft Teams (Video).
6 December.
[1] [2022] FWC 2780 (‘the Decision’).
[2] The Decision at [17].
[3] Australian Postal Corporation v Gorman [2011] FCA 975, 196 FCR 126 at [37].
[4] Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [43] per Buchanan J (with whom Marshall and Cowdroy JJ agreed).
[5] O’Sullivan v Farrer [1989] HCA 61, 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4, 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54, 192 FCR 78, 207 IR 177 at [44]-[46].
[6] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [27].
[7] Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30].
[8] Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663, 241 IR 177 at [28].
Printed by authority of the Commonwealth Government Printer
<PR749754>
0
2
0